CCA 1974 and 2006 updates: Advice please

[samcam]

Not sure if this is the right place to post this, but could do with a little clarification.

 

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I had a card with Barclaycard since 2000, which for various reasons I've been unable to pay.

 

BUT .... I never signed a credit agreement with them - only an application form.

 

At the time I took out the card, it would have been regulated by the Consumer Credit Act 1974, which we all know has section 127, sub section 3, which basically says "if you never signed a Credit Agreement, there's nothing the Banks can do about the debt and the courts can't help so **** off" .... or words the that effect

 

 

HOWEVER .... the 2006 version the Consumer Credit Act appears to remove section 127(3), but also says:-

 

The repeal by this Act of—

(a) the words “(subject to subsections (3) and (4))” in subsection (1) of

section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

Does this mean that, because I took out the card BEFORE 2006, I'm still covered by the 1974 Act and Barclayshark can go jump?

 

At this point someone please say "Yes, you're covered, BC can go jump, good luck in court" !!

 

Cheers

SamCam

[supasnooper]

As you took the card out prior to 2006, you are still able to use s127(3).

 

However, some Courts do find application forms enforceable, as indeed some of them are, so be very careful.

 

Have a look at these links which may help you understand the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

Consumer Credit Agreements

[samcam]

Hi supasnooper,

 

This is what I was sent:-

 

 

http://www.campbellphotographic.co.uk/images/application0001.jpg

 

Yes, that's how clear it really is!

 

At the bottom by my signature I think it says "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign only if you want to be bound by its terms".

 

Nothing else is really ledgable and there are certainly no Prescribed Terms or APRs, interest rates, etc.

 

Just because it says "Credit Agreement" by my signature, does that mean they can enforce it?

[supasnooper]

How can they enforce something that does not provide the Credit Limit, Interest Rate and Repayment if it isn't visible ?

 

They can't (well they shouldn't be able to ! ) ....and also a Judge may well take them to task about the legibility.

 

My earlier point about enforceable application Forms is still valid as some do contain the prescribed terms.

[lexis200]

Looks a bit pants as applications go.

 

Just out of intererst; that bit under no. 11 - does that allow you to say no to their card protection? I have no idea if it's the same as with PPI, but it seems a bit iffy if you have to take it out?

[samcam]

I sent a letter to FOS stating that this wasn't a credit agreement and was unenforceable.

There response was that because it has "credit agreement" written on it that makes it a credit agreement!

Also, the FOS don't care if there is a credit agreement or not!

 

Here's there letter:-

 

http://www.campbellphotographic.co.uk/images/FOSresponsetoCCA0001.jpg

[tosh1]

subbing

[samcam]

OK. I wrote to the FOS again say that this wasn't a credit agreement and it wasn't enforceable, blah, blah.

 

They just wrote back saying yes it is and also, even if it wasn't, they take the view that "you borrowed the money, now you have to pay it back". They're not interested in paperwork or little things like "the Law".

 

They contacted Barclaycard and made an offer on my behalf even though I specifically told them I didn't want to make any offer of payment to them!

 

BUT .... Barclaycard have agreed to let me pay £1 a month for 6 months with no interests added. Then if I go through a debt counselling service they may accept minimal payments.

 

They will also pay back the PPI plus 8% on the card as they accept this was missold.

 

The card debt is currently about £12K

PPI payback will be about £1.5K

 

They have no signed credit agreement (because I never signed one - only the application form) and my wife and I are on low income and have no way of paying this back.....

 

SO WHAT WOULD YOU GUYS DO!?

 

 

Would really appreciate some opinions. My biggest concern is that the courts suddenly start taking the moral high ground and start making people pay back debts/say they're enforceable, even without the correct paperwork.

 

Hope to hear from you all soon,

SamCam

[Redfish]

I would ignore the FOS, they are not interested in what is legal, they are probably trying to prevent a collapse of the entire banking system, not enforce or demand that the law is properly adhered to. You are challenging the legality of this, so they are a waste of your time. You clearly do not have an agreement there, you only have an application form with no prescribed terms.

 

Did you CCA the creditor to get this? If so you can put the account into dispute after the 12+2 working days on the basis that they have not provided you with the agreement. If you got it some other way, then send off your CCA request, give them the 12+2 working days, see if they send you the same thing, and then write to say the account is in dispute and they cannot collect on it - you can choose to stop paying then if you want on that basis.

 

Then let them try and take you to court...if they do, you can demand they show you the documentation they will be relying on, i.e. that there is a signed agreement with all the prescribed terms even before going to court.

[cerberusalert]

It really doesn't matter what FOS thinks, at the end of the day all they are is window dressing to make it look as if there is an unbiased adjudicator .... of course we all know differently particularly when they state themselves that they do not have to take into account the law when arriving at their decision.

[samcam]

Hi Redfish,

 

No, I got it from a SARs request. My CCA requests (many of them) have only ever turned up unsigned T&Cs.

 

This has been going on for a while. I have other threads on here too. Main one here:-

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162487-hello-newbie-need-lots.html

[Redfish]

Good! Then if you've sent them the account in dispute letter and stopped paying, just sit back and relax until/if they try and take you to court for real (not just threaten). Ignore their threats and don't start paying token amounts otherwise the debt will never be statute barred after 6 years, it will keep going on forever. If you pay nothing, then 6 years after the last payment they cannot chase you for it and your credit record cannot mention it.